Legislature(2017 - 2018)GRUENBERG 120
03/07/2017 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB127 | |
| HB112 | |
| HB1 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 127 | TELECONFERENCED | |
| *+ | HB 112 | TELECONFERENCED | |
| += | HB 1 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 127-CRIM. CONV. OVERTURNED: RECEIVE PAST PFD
3:04:48 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be HOUSE BILL NO. 127, "An Act relating to a permanent
fund dividend for an individual whose conviction has been
vacated, reversed, or dismissed; and relating to the calculation
of the value of the permanent fund dividend by including payment
to individuals eligible for a permanent fund dividend because of
a conviction that has been vacated, reversed, or dismissed."
CHAIR KREISS-TOMKINS opened public testimony on HB 127.
3:05:31 PM
FRANK TURNEY testified that he supports HB 127. He stated that
there are a number of criminal convictions overturned due to
newly discovered facts, suggesting a miscarriage of justice. He
said that those wrongly convicted have suffered punishment as a
result. He asserted that "the Fairbanks Four" should be
compensated with the permanent fund dividend (PFD) payments for
the 18 years of incarceration as should others whose convictions
have been overturned. He offered that wrongly convicted people
face many hurdles when re-entering society, such as finding
employment and housing, and needing psychological counseling.
He opined that compensating these people would not remove the
long years of incarceration but would help them "get back on
their feet" and have a normal life. He mentioned that other
states have set forth compensations for those who have been
wrongly convicted and whose convictions have been overturned.
He said that he spent nine years incarcerated in Oregon, after
which he worked on a governor's task force and on a county
community corrections advisory committee.
3:07:59 PM
MARVIN ROBERTS stated that he is from Canton, Alaska, and is one
of the Fairbanks Four. He relayed that in 1997, he and three
others were wrongly arrested and subsequently wrongly convicted
for crimes that they did not commit. He said that "after 18
years, we were finally given back our lives," but were not given
any compensation and are starting out with nothing. He said
that they find themselves struggling without job experience,
education, or money for professional counseling. He mentioned
that he is working two jobs, which limits time with his family.
He maintained that they were not allowed to file for PFDs in
prison during the 18 years. He attested that he would have
remained in Alaska during those 18 years and would have filed
for all his dividends. He stated that the money would benefit
the four of them immensely.
3:10:10 PM
REPRESENTATIVE TUCK thanked Mr. Roberts for his letter to the
committee [included in the committee packet] and for his
testimony.
CHAIR KREISS-TOMKINS wished Mr. Roberts the best as he
transitions back into society.
3:10:33 PM
REPRESENTATIVE WOOL asked Mr. Roberts if he was ever offered a
PFD application during his years of incarceration.
MR. ROBERTS replied that he was not offered a PFD application.
3:11:19 PM
NATASHA SINGH, General Council, Tanana Chiefs Conference (TCC),
stated that 14 months ago TCC celebrated the release from
incarceration of the four men known as the Fairbanks Four -
Marvin Roberts, George Frese, Eugene Vent, and Kevin Pease. She
relayed that these men maintained their innocence for 19 years
and were vindicated after a five-week [hearing]. She said that
they were released in exchange for signing an agreement
releasing the State of Alaska from any civil liability related
to the prosecution or investigation of their cases; therefore,
they cannot seek compensation through the court processes
available to most people.
MS. SINGH mentioned that the Fairbanks Four literally left
prison with the shirts on their backs, and the state did not
provide these men with assistance in transitioning back into the
"real world." She added that despite one's proven innocence,
re-entry into society is profoundly difficult for the wrongfully
convicted. She maintained that the failure to compensate them
adds insult to injury and opined that society has an obligation
to compensate the wrongfully convicted.
MS. SINGH offered that for Alaska to guarantee true justice to
innocent Alaskan men and women who are falsely incriminated,
wrongfully convicted, or victimized by the Alaska criminal
justice system, many areas of that system must be examined and
rehabilitated. She mentioned that there are charging and
sentencing disparities regarding both rural and urban Alaska
Natives and to all Alaskans. She stated that prosecutorial
misconduct and the mechanism for accountability of state
officials need to be codified with real and meaningful sanctions
available. She added that TCC will be seeking criminal justice
reforms and statutory changes. She mentioned eye witness
identification and access to post conviction deoxyribonucleic
acid (DNA) testing as two areas in need of reform.
MS. SINGH relayed that she has personally witnessed Marvin,
George, Eugene, and Kevin re-integrate themselves into the
community of Fairbanks and try to make something of themselves.
She maintained that they truly are doing it on their own. She
expressed her belief that they are heroes who have her respect
and the respect of the executive board of TCC.
3:15:41 PM
BILL OBERLY, Executive Director, Alaska Innocence Project,
stated that the proposed legislation would correct an error made
by the court and subsequently by the Permanent Fund Dividend
Division (PFDD). He asserted that the men and women whose
convictions have been vacated deserve the proposed statute. He
proclaimed, "The money is there, and it is the right thing to do
to give it to them. It is their money, in fact, wrongfully
taken from them." He contended that it is the right thing to do
morally, as they already have had years taken from their lives,
and it is the right thing to do legally, since they should not
have been in prison, and the PFD should not have been denied
them. He asserted that HB 127 would correct that error. He
added that this money could not be put to a better use. A
person released after wrongful incarceration receives no help
for his/her transition and no help to return to society. He
urged the committee to pass HB 127 out of committee. He
reiterated that these four men are truly heroes in that despite
being wronged terribly, they approach each day with a positive
attitude and continue to struggle each day in the face of many
barriers.
3:18:06 PM
REPRESENTATIVE KNOPP asked if HB 127 is the right vehicle for
compensation. He asked why someone, who knew his/her conviction
was going to be overturned, would give up his/her right to civil
litigation. He offered that the PFD money represents such a
small component of the compensation truly due them because of
wrongful conviction.
MR. OBERLY replied that he would attempt to explain the
situation by relating what the presiding judge said after
completion of the [five-week] hearing: The judge shared that he
had not listened to any testimony from the first three trials or
reviewed the two dozen motions and additional testimony
submitted during reconsideration of the case. He said that it
would take about six months to hear all the testimony and rule
on all the motions. He stated that he would be allowed six
months to decide on the case, but that six-month period would
not start until the review of evidence was completed. He
relayed that if he has not made a decision by the end of the
six-month period, he would no longer be compensated for his
work, but he stated that he would not be rushed into a decision
and had no problem working without pay. Through his statements,
the judge relayed to the men and those in the courtroom that it
could be a year or more before his decision.
MR. OBERLY said that at that time, three of the men had been
wrongfully imprisoned for 18 years - Mr. Roberts was out on
parole. He said they were told they could "get out tomorrow and
spend their first Christmas with their family in 18 years." He
attested that it was a difficult decision but said that if it
were him, he would not want to spend another day in prison.
MR. OBERLY emphasized that HB 127 is totally independent of the
larger issue of compensation. The proposed legislation would
give them money that was wrongfully taken from them because they
were wrongfully imprisoned. He contended that it is their
money; they are entitled to it; and it should never have been
taken from them.
3:23:01 PM
CHAIR KREISS-TOMKINS closed public testimony on HB 127.
3:23:38 PM
REPRESENTATIVE KNOPP asked how much of the PFD money [for the
Fairbanks Four] was received by the Department of Corrections
(DOC) and if it would be more appropriate to repay it from DOC's
budget rather than PFDD.
3:24:08 PM
REPRESENTATIVE SCOTT KAWASAKI, Alaska State Legislature, as
prime sponsor of HB 127, explained that PFD criminal funds -
funds that are withheld from someone incarcerated or having a
felony conviction - are paid predominately to DOC and to a
lesser extent to the Violent Crimes Compensation Board (VCCB),
the Alaska Council of Domestic Violence and Sexual Assault
(CDVSA), the Office of Victims' Rights (OVR), and non-profit
victims' rights organizations.
REPRESENTATIVE KNOPP asked if it would be more appropriate to
repay the funds from the DOC budget or the Alaska Court System
budget, since otherwise PFDD would be paying the amount twice.
REPRESENTATIVE KAWASAKI replied that under HB 127, the source of
funding would be the Reserve for Prior Year Dividend Liabilities
- a fund reserved for PFDs denied in error and subsequently
awarded. He said the fund currently has $233,000.
3:25:51 PM
REPRESENTATIVE JOHNSON asked how the money would be paid to the
four men and if there is enough money in the fund to do so.
REPRESENTATIVE KAWASAKI reiterated that the balance in the
reserve is about $233,000, and if the Fairbanks Four applied
under the proposed legislation, they could receive up to
$103,000 for the 18 years. He maintained that it is very
difficult to predict the number of cases that would be
applicable under HB 127, but staff has estimated the following:
two in 2011; two in 2012; zero in 2013; two in 2014; and 13 in
2015, which includes the Fairbanks Four. He mentioned that
prior to 2011, there were about two to three cases per year that
could potentially take advantage of HB 127 if passed.
3:28:52 PM
REPRESENTATIVE JOHNSON expressed her concern that there would
not be enough money in the reserve fund for all the potential
cases. She stated that another concern is whether the state has
a responsibility to solicit potential applicants under HB 127.
REPRESENTATIVE KAWASAKI answered that Department of Law (DOL)
staff informed him that if HB 127 passes, ignorance is not a
valid argument for neglecting to apply for the PFDs, and the
state has no responsibility to solicit applications.
REPRESENTATIVE JOHNSON stated her belief that there should be a
fiscal note attached to HB 127.
REPRESENTATIVE KAWASAKI commented that the proposed legislation
is scheduled for the House Finance Standing Committee, and the
fiscal note will be reviewed in that committee.
3:31:30 PM
CHAIR KREISS-TOMKINS asked for more information regarding the
sufficiency of funds in the PFDD reserve fund for payouts, if HB
127 passes.
3:31:50 PM
SARAH RACE, Director, Permanent Fund Dividend Division (PFDD),
Department of Revenue (DOR), stated that the amount set aside
for the reserve account is calculated every year based on the
available amount for calculating the per individual dividend.
She explained that PFDD does an analysis that considers not only
prior year liabilities but the potential number of individuals
turning 18 for whom their parents or sponsors did not apply.
She said that regarding the proposed legislation, PFDD may
either create another reserve account or may increase the amount
available in the Reserve for Prior Year Dividend Liabilities.
3:32:59 PM
REPRESENTATIVE LEDOUX asked how the 120-day filing period in the
proposed legislation was derived. She opined that it is a very
short window.
REPRESENTATIVE KAWASAKI suggested that the longer the filing
period, the larger the potential payout.
REPRESENTATIVE LEDOUX agreed that with a longer filing period,
more people who are entitled to the payout would know that they
are entitled to it. She expressed her concern that with the
120-day filing period, the Fairbanks Four may be the only people
who would apply for the payment under the proposed legislation.
REPRESENTATIVE KAWASAKI said he is not sure if there are other
people following the progress of HB 127 as closely as the
Fairbanks Four.
3:34:41 PM
REPRESENTATIVE BIRCH asked if there are any conditions or
provisions of the settlement agreement [signed by the Fairbanks
Four] that would preclude payment under the proposed
legislation.
REPRESENTATIVE KAWASAKI referred to the Alaska Superior Court
settlement document, which lists eight stipulations of the
agreement. He said that with the [signed] document, they agreed
not to sue the state.
REPRESENTATIVE BIRCH referred to the sponsor statement and asked
Representative Kawasaki if he truly believes the PFD is a
defining characteristic of what it means to be an Alaskan.
REPRESENTATIVE KAWASAKI conceded that the language in the
sponsor statement might have been "a little bit over the top."
He said he didn't think the PFD was the defining characteristic
of being an Alaskan.
3:36:32 PM
REPRESENTATIVE KNOPP asked if everyone who has had his/her
conviction overturned or dismissed since the first payment year
of 1982 would be eligible to apply for their PFDs under HB 127.
MS. RACE responded, "That is correct."
REPRESENTATIVE KNOPP suggested that the state has no idea of the
number of people who would be affected by HB 127 or the length
of incarceration per person, and he asked, "What happens when
this fund runs dry?" He asked how the annual recalculation of
the reserve was performed. He also asked for an explanation of
payments reserved for those who did not receive their PFDs as
juveniles because their parent didn't apply.
MS. RACE answered that every year PFDD calculates the amount of
money to be put into the reserve account. That amount is
deducted from the money that becomes available for paying
dividends, thus reducing the individual dividend amount. She
said that after the first year under HB 127, PFDD would have a
better idea of the amount that should be put into the reserve.
MS. RACE, responding to Representative Knopp's second question,
said that individuals turning 18 may apply up until their
twenty-first birthday for any PFDs that may have been missed on
their behalf. For these individuals, eligibility must be
determined for the years of application.
3:38:53 PM
REPRESENTATIVE WOOL, paraphrasing the testimony of Deputy
Commissioner Jerry Burnett, Department of Revenue, during the
House State Affairs Standing Committee meeting of 2/28/17, said
that if an incarcerated person applied for his/her PFD every
year, then was released because of an overturned conviction,
he/she could appeal previous PFD denials. Representative Wool
asked Ms. Race if many prisoners apply for PFDs. He asked if
they are given the opportunity and access to a computer.
MS. RACE replied that PFDD does receive applications from
incarcerated individuals, and correctional facilities do request
applications for prisoners.
REPRESENTATIVE WOOL expressed his understanding that those who
are incarcerated are not eligible for a PFD. He asked why an
incarcerated person would receive an application if ineligible,
and if some get applications, why wouldn't all of them be given
applications.
MS. RACE responded that many ineligible people apply for PFDs,
and PFDD encourages these applications, because that gives PFDD
the opportunity to determine eligibility.
REPRESENTATIVE WOOL suggested that he may be mistaken in his
assumption that anyone in a long-term correctional facility is
ineligible for a PFD.
MS. RACE said eligibility, regarding incarcerated individuals,
depends on timing. She stated that one criterion of
ineligibility is that during the qualifying year, an individual
has been sentenced because of a conviction of a felony. If a
person is both sentenced and incarcerated in the same year,
he/she may be ineligible for that year's PFD. If incarcerated
for more years, then the ineligibility would be extended for
those years.
3:42:43 PM
CHAIR KREISS-TOMKINS relayed that if someone was incarcerated
for a felony but knew he/she was innocent, it would be in that
person's best interest to apply every year until evidence might
vindicate him/her. This would allow retroactive eligibility
upon appeal of PFD denials and subsequent payments.
MS. RACE responded, "That is correct." She said that in this
scenario, the applicant would have received a denial letter for
every year of application, and the denial letter would have
explained the reasons for denial. She confirmed that at the
time the conviction was overturned, the person could appeal each
year of PFD denial.
3:43:43 PM
REPRESENTATIVE JOHNSON asked if anyone eligible for the PFD
under HB 127 would be paid a PFD for any period spent out of
state.
MS. RACE answered that in that situation, the inmate would still
be in the state's custody.
REPRESENTATIVE LEDOUX asked for clarification regarding the
scenario of someone in prison filing a PFD application every
year believing that he/she will ultimately be exonerated, and
the applications are denied. She asked if there is a time limit
to appeal a PFD denial. She suggested that either the appeals
would be denied because the person is still incarcerated, or the
time would have expired for most of the years by the time the
person has been exonerated. She offered that in that case,
applying for a PFD for all those years would not put the person
at any advantage.
MS. RACE confirmed that an individual has 30 days from the date
of receipt of a PFD denial letter to start the appeal process.
She added, however, that an additional regulation gives an
individual, who is in the situation described by Representative
LeDoux, 60 days from the time of an overturned conviction to
begin the PFD appeal process.
REPRESENTATIVE LEDOUX asked if any of the 21 potential
recipients of PFDs under HB 127 might have already appealed
under the regulation cited by Ms. Race.
REPRESENTATIVE KAWASAKI responded that he did not know the
answer.
REPRESENTATIVE LEDOUX asked how many people have taken advantage
of the regulation - that is, were exonerated and then re-
appealed their PFD denials.
3:48:58 PM
MS. RACE replied that she didn't have that number but could try
to find out from the Dividend Enforcement, Review and Appeals
Unit.
REPRESENTATIVE LEDOUX asked the sponsor to reconsider the 120-
day period for PFD application under HB 127. She questioned
whether that was an appropriate amount of time considering
minors are given three years to apply after turning 18, if
applications were not filed in their behalf.
CHAIR KREISS-TOMKINS asked if anyone has been reimbursed for
PFDs after being exonerated.
MS. RACE responded that she is not aware of any such occurrence
but could research the question.
3:50:27 PM
REPRESENTATIVE WOOL said that he fully appreciates the
unreasonable expectation for someone in prison taking on the
responsibility of requesting and completing a PFD application
year after year, only to be denied. He offered that with the
individual's involvement in all the legal processes necessary
for having his/her conviction overturned and the many issues
flooding his/her life after exoneration and release, finding the
PFD denial letters and pursuing the PFD appeal process
understandably might be delayed. He opined that the proposed
legislation is needed, and he agreed that the 120-day period is
too short.
3:52:05 PM
REPRESENTATIVE BIRCH said, "Somebody that isn't here is the
person who ... started it all, and that's the deceased person."
He cited one stipulation of the settlement agreement [signed by
the Fairbanks Four] and said, "The petitioners stipulate and
agree that the original jury verdicts and the judgements of
conviction were properly and validly entered based on the proof
beyond reasonable doubt." He agreed with Representative Wool's
assessment of the difficulty of filing for PFDs while in prison,
and he stated that HB 127 would be an appropriate remedy
[regarding the wrongfully convicted]. He reiterated, "We
shouldn't lose sight of the fact that ... there is somebody
that's not here ... a young man that was lost in some crime,
some time ago in the past."
3:53:57 PM
REPRESENTATIVE TUCK moved to report HB 127 out of committee with
individual recommendations and the accompanying fiscal notes.
There being no objection, HB 127 was reported out of the House
State Affairs Standing Committee.